Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, March 7, 1994 TAG: 9403040117
SECTION: MONEY PAGE: A-8 EDITION: METRO
SOURCE: Mag Poff
DATELINE: LENGTH: Medium
Our deed reads: grant and convey with General Warranty and Modern English Covenants of Title unto John Doe and Jane Smith as joint tenants with the right of survivorship as to common law.
Does this mean that at his death or my death the other will own the house free and clear from relatives, or do we need to change the wording to protect each other?
I have no children, but he has children from a previous marriage. We want our house to go completely to the surviving spouse.
A: Donald Wetherington, a real estate specialist with the Roanoke law firm of Wetherington and Melchionna, said joint owners of Virginia real estate will have the right of survivorship when the deed shows a clear intention that the part of the one dying should then belong to the other. The language quoted above clearly states that intention, he said.
Although these joint owners, called "joint tenants," have the right of survivorship, he said, the rights of one can be defeated by the actions of the other.
For example, a joint owner of real estate, even where the right of survivorship exists, can dispose of his half-interest in the property during his lifetime and deprive the other joint tenant of his right to the whole ownership later.
Thus, in the example, he said, if John Doe sells his half-interest to a third party, the joint tenancy will be severed.
If this happened, Jane Smith and the third party would own the property together. Jane Smith would continue to own a half-interest, but with no claim to the other half at the death of John Doe.
The survivorship interest could also be defeated if one joint tenant does not pay his debts as they mature. Wetherington said Doe's creditors might then reach his interest to satisfy their debts and thus deprive the other joint tenant of the right of survivorship.
In a special kind of joint tenancy created between spouses, called a "tenancy by the entirety," the survivorship cannot be defeated by either spouse alone, except by divorce. Nor can it be subject to attachment by the creditors of either spouse alone.
Wetherington said this feature of a tenancy by the entirety arises from the common-law notion of the "oneness" of husband and wife. Because the husband and wife together were considered one person, the attempt by either one alone to sell his interest - and the efforts of his creditors to reach his interest - were ineffective.
Your subsequent marriage did not convert the joint tenancy to a tenancy by the entirety with these additional protective features, Wetherington said.
With a properly drawn deed, however, a married Doe and Smith may now convey the property to themselves in a way that creates the tenancy by the entirety.
As to the children, Wetherington said, the rights of the survivor under the deed should prevail over the claims of the family of the deceased owner - assuming that neither joint owner has defeated the survivorship feature by actions during his lifetime.
Wetherington said a reconveyance of the title now to Doe and Smith as tenants by the entirety with the right of survivorship would better assure them that events during their lifetime will not frustrate the expected right of survivorship.
Medigap collection
Q: I carry two Medicare supplemental policies. One of these policies is from a private company, and the other is one that is subsidized in part by the company that I retired from. In the event of illness, will I be able to collect from both policies? If not, why does this differ from life insurance policies that you pay for and carry with different companies?
A: Companies with duplicate coverage will coordinate their policies - if they know about each other. Most, in fact, probably won't sell a policy in the first place if they know about the duplication.
Otherwise, what is to prevent you from doubly covering your house, setting it on fire and collecting twice its value? Or, in the alternative, you might buy double your salary in disability coverage, then claim you can no longer work. Few people would kill themselves, on the other hand, in order to leave their heirs money a little early.
You are making a mistake - and wasting money - by having two Medigap policies when you need only one. In Virginia, in fact, an agent cannot knowingly sell you a duplicate in that field.
In Virginia, there are 10 standard Medigap insurance policies available. As you climb the ladder from policy A to policy J, each one adds more of different types of coverage. You should use your money to expand - not duplicate - Medigap coverage.
Spend your money buying the one policy with the broadest coverage you can afford.
by CNB